Opinion
Civil Action 21-cv-02777-CMA-KLM
07-12-2022
JUAN CAMPOS, and VANESSA VARGAS, mother and next friend of a minor, J.C.C., Plaintiffs, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant.
ORDER AFFIRMING AND ADOPTING RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE
This matter is before the Court on the June 23, 2022 Recommendation of United States Magistrate Judge (Doc. # 30), wherein Judge Kristen L. Mix recommends that Defendant's Partial Motion to Dismiss for Failure to State a Claim (Doc. # 9) be granted and Plaintiffs' second and third claims for relief be dismissed with prejudice. Judge Mix further recommends that Defendant's request for attorney's fees pursuant to Colo. Rev. Stat. § 13-17-201 be denied without prejudice. The Court affirms and adopts the Recommendation for the following reasons.
“[T]he district court is accorded considerable discretion with respect to the treatment of unchallenged magistrate reports. In the absence of timely objection, the district court may review a magistrate [judge's] report under any standard it deems appropriate.” Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (citing Thomas v. Arn, 474 U.S. 140, 150 (1985) (stating that “[i]t does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings”)). The Recommendation advised the parties that specific written objections were due within fourteen (14) days after being served with a copy of the Recommendation. (Doc. # 30 at 12.) Neither party has filed any objection, and the time to do so has now expired.
Having reviewed the Recommendation, the relevant portions of the record, and applicable legal authority, the Court is satisfied that the Recommendation is sound and not clearly erroneous or contrary to law. See Fed.R.Civ.P. 72(a). Accordingly, the Court ORDERS as follows:
• The June 23, 2022 Recommendation of United States Magistrate Judge (Doc. # 30) is AFFIRMED and ADOPTED as an order of this Court; and
• Defendant's Partial Motion to Dismiss (Doc. # 9) is GRANTED.
• Accordingly, Plaintiffs' second and third claims for relief are DISMISSED WITH PREJUDICE. It is
• FURTHER ORDERED that Defendant's request for attorney's fees pursuant to Colo. Rev. Stat. § 13-17-201 is DENIED WITHOUT PREJUDICE.
The Court agrees with Judge Mix that dismissal with prejudice is appropriate because Plaintiffs neither filed a response to Defendant's Partial Motion to Dismiss nor sought leave to amend their Complaint to cure the deficiencies therein, namely a dearth of factual allegations. See Brereton v. Bountiful City Corp., 434 F.3d 1213, 1219 (10th Cir. 2006) (“A dismissal with prejudice is appropriate where a complaint fails to state a claim under Rule 12(b)(6) and granting leave to amend would be futile.”); see also Ostler v. Buhler, 30 F.3d 142, 1994 WL 408124, at *2 (10th Cir. Aug. 3, 1994) (unpublished) (“The filing of a motion to dismiss gives the plaintiff notice that his complaint is potentially deficient and the opportunity to amend his complaint to cure the alleged deficiencies.”); Mason v. Miro Jewelers, Inc., No. 19-cv-02459-LTB-KLM, 2020 WL 6828014, at *2 (D. Colo. June 17, 2020) (observing that dismissal with prejudice was appropriate in light of “Plaintiff's decision to stand on the meager allegations of her Complaint, rather than amend her Complaint”).